IN THE CASE OF:	  

		BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130004589 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his other than honorable conditions discharge and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show in:

* Item 2 (Service Number) - "RA xx xxx x08"
* Item 3 (Social Security Number (SSN)) - "xxx-xx-2xxx" instead of 
"xxx-xx-3xxx"
* Item 21 (Home of Record at Time of Entry into Active Service) - "Colton, CA" instead of "San Bernardino, CA"

2.  The applicant states:

* his discharge should not have been characterized as an undesirable discharge
* he is a Canadian citizen but felt a love and desire to serve the United States of America and its Constitution and way of life
* during his tour in Vietnam, he faced a lot of emotional trials such as the loss of his grandmother, birth of his son, and loss of his grandfather that severely altered him mentally
* while in Vietnam, a sergeant involved in black market dealings constantly harassed and belittled him because he did not believe in his dealings and told him how he felt


* he threatened the sergeant with his rifle after the sergeant and another Soldier picked up his cot while he was asleep
* he believes he should have received some kind of counseling

3.  The applicant provides:

* self-authored statement
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  On 3 November 1966, the applicant enlisted in the Regular Army (RA).  He completed training and he was awarded military occupational specialty 63K (Heavy Equipment Repairman).

4.  The complete facts and circumstances surrounding his discharge are not available for review with this case.

5.  Special Orders Number 185, issued by Headquarters, U.S. Army Personnel Center, Oakland, CA, dated 4 July 1969, ordered his discharge with an under other than honorable conditions discharge.  The order also shows:

* his SSN as "xxx-xx-2xxx
* a permanent address listed in San Bernardino, CA

6.  On 4 July 1969, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) and assigned a separation program number (SPN) of 28B.  
He competed 2 years, 7 months, and 10 days of total active service with 22 days of time lost.  His DD Form 214 shows in:

* item 2 – "RA xx xxx x9?" (the last digit is illegible)
* item 3 – "xxx-xx-3xxx"
* item 11c (Type of Transfer or Discharge - Reason and Authority) – 
AR (Army Regulation) 635-212, SPN (Separation Program Number) 28B Discharge"
* item 13a (Character of Service) – Other Than Honorable Conditions
* item 13b (Type of Certificate Issued) – 258A, indicating Undesirable Discharge Certificate
* item 21 – "San Bernardino, California"

7.  His record contains a National Archives and Records Administration (NA) Form 13038 (Certificate of Service) that shows his service number as
"RA xx xxx 108."  Furthermore, his available record is filed at the National Personnel Records Center (NPRC) under the same service number.

8.  On 10 November 1969 and 19 February 1981, the Army Discharge Review Board denied the applicant's requests for an upgrade of his discharge.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child;
(3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

10.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, provides in:

	a.  Paragraph 3-7a that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable 


characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The regulation, in effect at the time, stated for:

	a.  item 2, enter the individual's service number and authorized prefix.

	b.  item 3, transcribe SSN from DA Form 2139 (Military Pay Voucher).

	c.  item 11c, enter the authority for transfer or discharge by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN.  SPN 28B indicates unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.

	d.  item 13a, enter one of the following in capital letters: "HONORABLE," "UNDER HONORABLE CONDITIONS," "UNDER CONDITIONS OTHER THAN HONORABLE," "DISHONORABLE."

	e.  item 13b, enter the form number of the certificate ·issued, e.g., "DD Form 256A," "DD Form 257 A," etc.

	f.  item 21, Enter home of record at time of entry into active duty as shown on enlistment or induction record, regardless of place physically located at time of entry on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's reconstructed record is void of the specific facts and circumstances that led to his discharge.  However, his record contains and he provides a DD Form 214 that shows he was discharged on 4 July 1969 under the provisions of Army Regulation 635-212 by reason of unfitness with the issuance of an Undesirable Discharge Certificate.
2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, there is no basis for granting the applicant an honorable or a general discharge.

3.  Although the applicant did not provide a copy of his social security card, his record contains Special Orders Number 185, dated 4 July 1969, that show his SSN as "xxx-xx-2xxx."  Therefore, it would be appropriate at this time to correct his DD Form 214 to show the SSN number listed on his separation order.

4.  An NA Form 13038 shows his service number as "xx xxx 108."  Further, his available records are filed under the same service number.  Therefore, it would be appropriate to correct his DD Form 214 to show the service number as shown on his NA Form 13038.

5.  All available evidence shows his home of record as San Bernardino, CA.  There is no evidence of record and the applicant did not provide any evidence that shows his home of record as Colton, CA.  Therefore, there is an insufficient evidentiary basis for granting this portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 2 of his DD Form 214 the current entry and replacing it with the service number as shown on his NA Form 13038; and

	b.  deleting from item 3 of his DD Form 214 the current entry and replacing it with the SSN as shown on Special Orders Number 185, dated 4 July 1969.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

	a.  upgrading his undesirable discharge to either an honorable or a general discharge; and

	b.  showing his home of record as Colton, CA instead of San Bernardino, CA.



      __________X___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130004589



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ABCMR Record of Proceedings (cont)                                         AR20130004589



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